Contrary to popular belief, not all property passes through probate upon death. In fact, there are five (5) major types of property that an individual owns upon death (called “estate property”), and only one (1) of them (i.e., “solely-owned property”) actually passes through probate. Listed below are the five (5) major types of estate property, and how each type of estate property passes upon death.

Property owned
as joint tenants with right of
survivorship
(JTWROS)
passes
directly to the surviving
joint owner(s) upon the
death of an owner.

Property held in
a living trust
passes directly
to the
beneficiaries
designated
under the
trust
instrument.

Solely-Owned
property passes
to beneficiaries
designated
under a will
or, if there is
no will, under
the laws of
intestacy.

Death benefits
payable under
an annuity or
life insurance
policy pass
directly to the
beneficiaries
designated
under the
annuity contract
or insurance
policy.

Death benefits
payable under
retirement plans
(including IRAs)
pass directly to
the beneficiaries
designated under
the retirement
plan.

Non-Probate
Property

Non-Probate
Property

Probate
Property

Non-Probate
Property

Non-Probate
Property

Jointly-Owned Property:

Property can be owned by one or more persons and/or entities. When property is owned by more than one person or entity at the same time, the concurrent ownership is referred to as a co-ownership, or as a co-tenancy, or as a joint tenancy. Whatever term is used to describe property that is jointly-owned, two facts are clear: First, the co-owners of property share certain rights to the property and to each other. Those rights are largely defined by applicable law and, to some extent, by agreement among the co-owners. Second, the terms used to describe the various types of concurrent ownership often have divergent meanings from one jurisdiction to another. For example, many jurisdictions refer to a joint tenancy as a joint tenancy with right of survivorship, while others refer to a joint tenancy as tenants in common. The distinction will become apparent from the discussion that follows:

Joint Tenancy with Right of Survivorship (JTWROS). A joint tenancy with right of survivorship is a type of concurrent ownership in which the co-owners have a right of survivorship. In other words, if one owner dies, then that owner’s interest in the property passes automatically to the surviving joint owner or owners. The deceased owner’s interest terminates immediately upon death and cannot be inherited by his or her heirs. As a result, jointly-owned property with right of survivorship does not pass under a will and does not pass through probate.

Unlike tenants in common, joint tenants have equal interests in the property. Tenants in common often have unequal interests and/or unequal rights in the property, often owing to the amount contributed to the purchase price.

This form of concurrent ownership of property is commonplace between a husband and wife. It is also seen between a parent and a child or between other individuals where there is an expressed intent is to have the property pass immediately and by operation of law to the surviving joint owner. When a joint tenancy with right of survivorship is intended to be created, the acronym JTWROS is often added to the title of the property. Banks and brokerage firms often add this acronym to joint accounts.

Because a deceased joint owner’s interest is terminated automatically upon death, many jurisdictions will require a clear intent to create this form of concurrent ownership before the courts will enforce it. For example, a clear intent to create a joint tenancy with right of survivorship might be worded as follows: “to A and B as joint tenants with right of survivorship, and not as tenants in common.” A shorter form may be acceptable in some jurisdictions; i.e., “to A and B as joint tenants.” In many jurisdictions, concurrent ownership between husband and wife may be presumed to create a joint tenancy with right of survivorship, while concurrent ownership between non-spouses is often presumed to create a tenancy in common and not a joint tenancy with right of survivorship.

Other Forms of Concurrent Ownership of Property. There are two other forms of concurrently-owned property (or jointly-owned property) that you should be aware of. The first is a Tenancy by the Entirety. A Tenancy by the Entirety is available only to a husband and wife. Like a JTWROS, a Tenancy by the Entirety also contains a right of survivorship so that, upon the death of one spouse, the entire property passes to the surviving spouse by operation of law. The interest of the deceased spouse does not pass through probate and, accordingly, cannot pass under the deceased spouse’s will or the laws of intestacy.

The second is a Tenancy in Common. This is the default form of concurrently-owned property. It is the common form of concurrent ownership when the owners are not husband and wife, or have contributed different amount in acquiring the property. Many jurisdictions will classify a concurrent ownership as a tenancy in common when a joint tenancy with right of survivorship or a tenancy by the entirety fails for any reason.

Living Trust Property:

A trust established during your lifetime is a legal entity that is recognized as such by all 50 states and the federal government. The dispostion of property held in a living trust is controlled by the terms of the trust instrument, whether a declaration of trust or a trust agreement. It is not controlled by your will, it is not controlled by the intestacy laws of the state in which you are domiciled, and it does not become a part of your probate estate.

Solely-Owned Property:

All property that does not have a pre-designated beneficiary upon your death, becomes a part of your probate estate. Property that you own entirely by yourself (solely-owned property) is the most common form of probate property – for example, a bank account in your own name, a stock or bond in your own name, a piece of real estate in your own name, etc. But, other properties that you own at the time of your death may also become probate property. For example, any interest in property owned by you as a Tenant in Common with others becomes part of your probate estate. The same is true with any life insurance policies, annuity contracts, and retirement plans when you die without having designated a beneficiary or for some reason the designation you made is not effective. In those cases, the benefits payable under such insurance policies, annuity contracts, and/or retirement plans may be paid to your probate estate, to be disposed of along with your other probate property.

If you have a valid will at the time of your death, then you are said to have died “testate” and your probate property will be distributed in accordance with the terms and provisions of your will. If you die without a valid will, then you are said to have died “intestate” and your probate property will be distributed in accordance with the intestacy laws in your state of domicile.

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